Committee on Elimination of
Discrimination against Women
592nd and 593rd Meetings (AM & PM)
WOMEN’S ANTI-DISCRIMINATION COMMITTEE EXPERTS EXPRESS OPTIMISM NEW GOVERNMENT
OF KENYA WILL COUNTER PERSISTENT, TRADITIONAL FORMS OF DISCRIMINATION
Country’s Third, Fourth Reports on Convention Compliance Introduced
Experts on the Committee on the Elimination of Discrimination against Women today expressed optimism that the newly elected Government of Kenya would commit itself to countering the traditional forms of discrimination that persisted in that country, as the Committee considered Kenya’s reports on compliance with the Convention on the Elimination of All Forms of Discrimination against Women.
Introducing the third and fourth period reports of Kenya, Deborah Ongewe, the Permanent Secretary of the Kenyan Ministry of Gender, Sports, Culture and Social Services, said that Kenya’s new Administration, elected in December 2002, would be guided by the principles of democracy, good governance and the promotion of human rights. Since ratifying the Convention in 1984, the Government had collaborated with various non-governmental organizations and community-based organizations for implementation, but it recognized that gender inequalities persisted.
The Government, she said, had undertaken various efforts to remove social, cultural and legal obstacles facing women, including the development of affirmative action to address situations where women had been marginalized. The national machinery for the advancement of women had been elevated from a division within a department to a full department within the new Ministry of Gender, Sports, Culture and Social Services.
The Constitution of Kenya Review Commission (CKRC) had already published a draft Constitution in September 2002, she said, which should be in place by June 2003. The current Constitution reserved the right to discriminate in matters of customary and personal laws. Once enacted, the new Constitution would repeal that provision, prohibit all discrimination and expand the definition of discrimination to include, among other things, race, sex, pregnancy and marital status.
The draft Constitution, she said, recognized and required the Government to address the injustices of the past through legislative or other measures. It prohibited any law, culture, custom or tradition that undermined the dignity, welfare, interest or status of women and would enable women to have access to and control of property. There was new legislation and other measures planned for those purposes, as well as programmes related to health, employment, harassment, assistance to rural women, and many other areas.
Following the presentation of the report, experts of the Committee congratulated the Kenyan delegation on a forceful presentation, coming only 14 days after the change of administration in the country. Many were particularly pleased by the recognition of existing discrimination, the development of new measures to counter it, and the fact that the new Constitution would prohibit discrimination whatever the cultural context.
In that regard, many expressed hope that proactive measures would be taken to counter traditional and customary discrimination, such as forced marriage, female genital mutilation and stereotypical roles, recognizing that it was a difficult effort. They discussed the importance of educational and sensitization efforts in that regard, as well as the importance of continued work with non-governmental organizations.
Others were concerned about the lack of attention paid to violence against women in the report, and asked for details about the new status of customary practice in the draft Constitution, where it still seemed to be applicable in some cases. Many were worried by the contradiction between equal rights and the five forms of customary marriage under religious law that were still recognized.
Responding to the issue of violence against women, Martha Koome, representative of the Kenyan Federation of Women Lawyers, said a commitment had been obtained from the new Justice Minister to give priority to a domestic violence protection bill that had already passed critical stages. Beyond the provisions of the bill, she recognized that the attitudes of law enforcement officers must also change, and her Federation had been working with the police to develop a training manual on gender violence.
Regarding the status of customary practice, she said the rights-based approach of the new Constitution meant it was committed to ensuring that customary law, to be applied, must pass the human rights test. If a customary practice infringed on internationally or nationally proclaimed rights, it would be declared null and void.
Uniform marriage laws remained a great challenge in Kenya, she said, despite long-standing efforts. Notwithstanding the kind of marriage, though, alimony, property and custody questions could be brought to the regular courts, in accordance with the law and the welfare of the children. Under customary marriages, however, such cases could also be adjudicated in traditional ways.
The Committee will meet again 10 a.m. Thursday, 16 January, to take up the combined initial and second periodic reports of Albania.
The Committee on the Elimination of Discrimination against Women met this morning to take up the third and fourth periodic reports of Kenya (document CEDAW/C/KEN/3-4). Kenya ratified the Convention in 1984.
The report says that, according to Kenyan common law, international law does not affect municipal law unless Parliament specifically enacts or incorporates it into law. The Convention on the Elimination of All Forms of Discrimination against Women, therefore, must be given effect through legislative, judicial and administrative measures. The lengthy domestication procedure has contributed to delays in the Convention’s implementation.
The Government has, however, intervened in several instances to comply with the Convention’s provisions. These include: the 1998 Draft National Policy on Gender and Development; the establishment of a task force to review laws relating to women and children; a 1998 constitutional review process; and the establishment of the Women’s Bureau in 1976 as the national women’s machinery for the advancement of women in Kenya. To strengthen the existing national machinery for the advancement of women, the Government has also proposed the establishment of a National Council for Gender and Development. Taken together, these measures auger well for the establishment of institutional mechanisms for implementation of the Convention.
The legal definition of discrimination in Kenya’s laws does not cover the various aspects envisaged by the Convention, the report says. While the definition of discrimination was amended to include discrimination on the basis of sex in 1997, the Constitution reserves the right to discriminate in areas that affect women, namely, adoption, marriage, divorce, burial, devolution of property on death, and customary and personal law. Such discrimination must be seen in the context of Kenyan society, however, which is composed of various ethnic groups with different customs and practices.
Noting a positive development, the report says that the entry into force of the 1981 Law of Succession Act has been a major step forward for women, in that it gives both men and women equal rights to inherit, own and dispose of property. While in practice the Government adheres to the principle of equality of men and women, customary practice, lack of awareness and stereotyped roles and poverty present a major obstacle to the full attainment of women's fundamental rights.
The Government has established a commission to review the Constitution, the report explains. Women are well represented in both the commission and in district forums, which facilitate the work of the commission. Another review body -– the National Constitutional Consultative Forum -– also includes women’s organizations.
The Government has taken certain affirmative action measures, mainly in the education sector, to accelerate de facto equality, the report says. At the same time, however, practices such as forced marriages, early marriages, wife inheritances, polygamy, female genital mutilation, and the payment of dowries have hampered the advancement of women. Efforts to curb such practices include a presidential directive against female genital mutilation; stern legal actions against forced marriages; and media coverage designed to combat stereotyping and advocate against such practices.
Women actively participate in Kenyan political life, the report notes, with the number of women seeking elective offices increasing. In the 1997 general election, 50 women ran for parliamentary positions, and two women ran for president. Despite their major participation as voters, however, the number of women in Parliament remains much lower than that of men.
Kenya's Employment Act provides that every employer is entitled to leave with full pay, weekly rest days, adequate housing and medical intention, the report says. The number of female employees has increased from some 21.9 per cent in 1990 to about 29.3 per cent in 1998. The Civil Service Code, which has been amended, now provides women with equal housing allowances. The National Hospital Insurance Fund, however, does not allow married women to contribute, except in cases where she is the family's breadwinner.
DEBORAH ONGEWE, Permanent Secretary of Kenya’s Ministry of Gender, Sports, Culture and Social Services, introduced her country’s combined third and fourth periodic reports. Kenya had successfully gone through general elections in December 2002. The National Rainbow Coalition (NARC), which had won the election, had formed a new Government. The new Administration would be guided by the principles of democracy, good governance and the promotion of human rights.
Kenya ratified the Convention in 1984, she said, and had complied with reporting obligations as required. To implement the Convention, the Government collaborated with various non-governmental organizations (NGOs) and community-based organizations. The Government recognized that gender inequalities persisted. In chapter 6 of its manifesto, the Government was committed to ensuring that gender equality was promoted as a necessary precondition for national development and the realization of the full potential of each Kenyan citizen.
The Government undertook various efforts to remove social, cultural and legal obstacles facing women, including the development of affirmative action to address situations where women had been marginalized, she said. The National Machinery for the Advancement of Women had been elevated from a division within a department to a full department within the new Ministry of Gender, Sports, Culture and Social Services.
She said Kenya faced the challenge of reducing poverty and achieving sustainable economic growth. To address that concern, a poverty-reduction strategy paper was prepared in 2001 to implement the national poverty-eradication plan in a series of three-year rolling plans. Also, a gender thematic group was formed to make the document gender responsive.
The Constitution of the Kenya Review Commission (CKRC) had already published a draft Constitution in September 2002, she said, which was awaiting discussion by the National Constitutional Conference before being tabled in Parliament. The Constitution of Kenya Review Act required that one third of the delegates to the Conference be women. The new Constitution should be in place by June 2003. The draft Constitution was milestone for Kenyan women, as it addressed issues that sought to empower women in all areas where there had been discrimination.
The current Constitution, she noted, reserved the right to discriminate in matters of customary and personal laws. Once enacted, the draft Constitution would repeal that provision. Section 34 prohibited discrimination and expanded the definition of discrimination to include, among other things, race, sex, pregnancy and marital status. It recognized and required the Government to address the injustices of the past through legislative or other measures. The draft Constitution prohibited any law, culture, custom or tradition that undermined the dignity, welfare, interest or status of women and would enable women to have access to and control of property.
Regarding article 3 of the Convention, she said the Standing Committee on Human Rights, established in 1996, had, in 2002, been transformed into the Kenyan National Commission on Human Rights. That Commission’s main function was to investigate, on its own initiative or upon a complaint, the violations of any human rights. The Commission ensured that the Government complied with its obligations under international human rights treaties and conventions and had the power to order payment of compensation or any other lawful remedy or redress.
On temporary special measures, she said the Affirmative Action Bill of 2001 had been referred to the CKRC for consideration and possible inclusion in the draft Constitution, which made provisions for affirmative action. Cases of domestic violence had been on an upward trend. The Government did not provide funding or shelter for women victims of violence. To address that situation, the Government had published the Domestic Violence (Family Protection) Bill 2002, which proposed the establishment of a fund to provide financial assistance to victims of domestic violence.
Historical trends reflected a gradual increase of women participating in politics and decision-making, she said. The Government had made deliberate attempts to improve women’s representation in the judiciary, diplomatic service and administration. The number of women in decision-making positions had risen. In 1997, only four of the 210 elected members of Parliament were women. In the recent elections, the number of women elected to Parliament rose to nine out of 210, or 4.3 per cent. Three women had been appointed to hold ministerial-level positions and another three had been appointed to assistant ministerial-level posts. Of the 12 slots for nominated members of Parliament, the current Parliament had nominated eight women or some 66.6 per cent. The total number of women parliamentarians was 17, which was the highest number in Kenyan history.
On the issue of nationality, current law denied women the ability to confer nationality to a foreign husband and children, she said. The draft Constitution proposed to repeal those sections and confer citizenship to every person born of a Kenyan citizen mother or father and to every person married to a Kenyan citizen for a period of not less than three years.
While the education sector had made tremendous progress, especially at the primary school level, gender disparities persisted, she said. At the beginning of the year, the current Government had put in place a policy of free compulsory primary education, which had led to an unprecedented increase in primary school enrolment. The Adult and Continuing Education Bill 2001 had been published, which would broaden the provision of education to adult learners by allowing progression from basic literacy to university-level education.
The frequency of sexual harassment at the work place, she said, was unknown since it was rarely reported. The Public Offices Code of Ethics Bill outlaws all forms of such harassment. The Public Service and the Teachers Code prohibits teachers from harassing their students. Such harassment in public universities had been dealt with firmly.
She said the draft Constitution recognized the right of every person to health care, including reproductive care, and had prioritized primary care, with efforts to assist poor persons with the cost-sharing schemes. Many structural reforms were now under way in the system. The Government was also committed to intensifying the campaign against AIDS, following a reduction in the prevalence rate during the year 2002. Priorities in that area included the publication and enactment of the HIV and AIDS Prevention and Control Bill of 2002, building of capacity and partnerships, and creating access to anti-retroviral drugs.
Rural women, she said, had benefited from rights-sensitization programmes, helping them make inroads into local decision-making bodies. They also receive agricultural training and micro-credit through various programmes and cooperative societies.
Women, she said, had equal access to the courts for legal redress; the Government, in collaboration with non-governmental partners, was developing a national legal aid scheme to assist those who lack funds to pay for representation.
The rights and obligations governing marriage and divorce in Kenya may differ depending on the form of marriage chosen: African Christian, Hindu, Mohammedan and African Customary. The draft Constitution, once enacted, aims to recognize cultural diversity and bestow equal rights in marriage and divorce.
Questions and Comments from Experts
Committee Chairperson AYSE FERIDE ACAR, expert from Turkey, congratulated the Kenyan delegation on the outcome of the recent election, the recognition of existing discrimination, and development of measures to counter it. She was happy to hear that the new Constitution would prohibit discrimination, period, within the cultural context. She hoped that proactive measures would be taken to counter traditional and customary discrimination.
HEISOO SHIN, expert from the Republic of Korea, said that she was initially disappointed with the report because of slow progress since ratifying the Convention. But the oral introduction of the report, and the recent political developments, boded well for more accelerated change. There was, she said, a lot of work to do. She hoped that the Office of Gender Equality would be soon promoted to the ministerial level.
She added that there should be equality in every sphere, not just “equity”, and that required a change of consciousness on the part of both women and men. In such a change, it was important to collaborate with civil society. Finally, she noted that there was nothing in the report about violence against women; it was essential to begin training law enforcement officials in those matters.
CHRISTINE KAPALATA, expert from the United Republic of Tanzania, said it was unusual to hear from such a new Government, and today’s presentation was a hopeful sign. She asked the delegation to exhort commitment to the new programme, which contained many useful measures.
DUBRAVKA SIMONOVIC, expert from Croatia, said that the presentation contained many good elements for women’s rights. She asked for more information on the relation between international law and domestic law under the new Constitution. She also asked about the role of provincial administrations in child protection cases.
AIDA GONZALEZ MARTINEZ, expert from Mexico, appreciated the Government’s political will in sending such a large delegation to present the report. The report did not appear to show progress in applying the provisions of the Convention. She had expected greater progress and political will to eradicate discrimination. She welcomed the draft Constitution and asked whether it included any change in the present legal system to apply common law and customary law without distinction. She also wondered if there was a system of change to incorporate international commitments into Kenyan law, specifically on human rights.
She added that some 19 years had passed since Kenya’s ratification of the Convention without the incorporation of specific laws to apply the provisions of the Convention to Kenya’s legal system. The undervaluing of women encouraged violence and increased their vulnerability in preventing sexually transmitted diseases. She asked whether the new Government had considered promoting a change in social and cultural stereotypes.
HUGUETTE BOKPE GNANCADJA, expert from Benin, stressed the necessity of coordination between the different national structures for the advancement of women. The constitutional review would be key to the success of the legislative reform. Once done, any existing law, tradition or custom that contradicted the principles of the Constitution would become anti-constitutional. She also emphasized the need not to scatter the areas of civil or criminal law into different laws or sections of the same law. In the case of violence and rape, for example, rape was treated both as an offence against a person and an offence against morality. The judge could choose the sanction with the least punishment, which would perpetuate the cycle of violence. She also questioned the present sanctions for prostitution.
Ms. ONGEWE, responding to expert’s comments, said the new Government believed in the participation and involvement of all the various sectors, as evidenced by the composition of the delegation.
Answering legal questions, JUSTER NKORI, Attorney General Chambers, said that Kenya did not have a defined system of domesticating international obligations. The draft Constitution provided the international conventions and treaties ratified by Kenya as law. Once ratified, the various treaties would be applicable in Kenyan courts. On the children’s act, the penalty for any person violating the rights of the children was 12 months imprisonment or 50,000 shillings.
MARTHA KOOME, representative of the Federation of Women Lawyers, responding to the issue of violence against women, said they had obtained commitment from the new Justice Minister to give priority to bills that had gone through critical stages, such as the domestic violence protection bill. Sittings would begin on 28 January. She was optimistic that the bill would become law before June. The issues of domestic or gender violence would go beyond the draft law, in the sense that it recognized that the attitudes of law enforcement officers must change. The Federation of Women Lawyers had been working with the police to develop a training manual on gender violence. The manual provided guidelines and was operational. She hoped that, with the establishment of the family court division, domestic violence issues would receive more urgent attention from that court, which would deal exclusively with family matters.
On constitutional arrangements, ANNE AMBWERE, Commissioner of Social Service, said the new Ministry for Gender, Sports, Culture and Social Services was headed by a man, which showed the Government’s commitment to gender matters. The National Machinery for the Advancement of Women had been elevated from a division to a department within that Ministry. On institutional mechanisms, the Women’s Bureau was the government wing for women’s advancement. Gender desks in key ministries assisted the national machinery in mainstreaming gender issues. Various women’s NGOs also collaborated in mainstreaming gender. There was also the proposed National Committee on Gender and Development. All those institutions would form the national machinery to enhance the role of women in Kenyan society.
Ms. KOOME said the new Constitution upheld a rights-based approach, which was why the draft Constitution had committed to ensuring that the application of customary or personal law must pass the test of the promotion and protection of human rights. If a customary practice infringed on internationally or nationally proclaimed rights, it would be declared null and void. Although the Constitution still allowed for customary law, it would have to meet the standards of the Constitution. The equality bill was not an equity bill. It activated the provisions of the draft Constitution and provided for equal opportunities in work and within marriage.
JOYCE MWKALI MUTINDA, Kenyan Commissioner for Higher Education, said that rescue missions in cases of forced marriage were carried out by provincial administration and education officers, in order to both extricate the child out of the marriage and give her a chance to re-enrol in school. There was also a special school where children rescued could reside until they were accepted back by their parents or adopted.
Regarding education to combat stereotypes, she said that there had been a curriculum sector review and a new plan was being drawn up. There was a checklist to make sure support materials did not continue such stereotypes.
Ms. ONGEWE said that the report was written in collaboration with NGOs. She herself was recruited from civil society. The new Government was on the move, and the next report must show evidence of that movement. The Government was very committed, and she was happy to work with it; there was a strong team of legal experts to ensure that new anti-discrimination laws were as strong as possible.
Questions from Experts concerning Articles 1 through 6
MARIA YOLANDA FERRER GOMEZ, expert from Cuba, hoped that the bills described would be quickly adopted. In just 14 days, the Government had given a boost to the situation of women. The educational measures described were a big step forward; to change mentalities, a great deal of work had to be done. Such work had been done previously only by NGOs, and a majority of the population still felt discrimination was normal. There needed to be a larger, more integrated plan for those purposes. The poverty eradication plan was important; she asked how women’s needs would be accounted for in it.
FRANÇOISE GASPARD, expert from France, said that there was concern in reading the report because all programmes seemed aimed at future implementation. The power of customary laws was still of concern. She asked whether the report had been submitted to Parliament; if not, she hoped that the next report would be. She also asked how the national commission would relate to the present structure, and if there would be rapid action on regressive penalties for prostitution and promotion of prostitution.
GORAN MELANDER, expert from Sweden, asked for clarification of the relationship of domestic law to international law. If international law became primary, were there programmes in place to educate the judiciary about such law?
NAELA GABR, expert from Egypt, said that recent political achievements, including women’s efforts, led to optimism about the future. The question of education was particularly important and needed to be addressed in a broader way, for example, by raising awareness through media that reached villages, to combat stereotypes.
The central role of women in development, as equal partners, also needed to be asserted, as part of a comprehensive plan, she said. New laws needed to be effectively implemented. Genital mutilation and infectious diseases also needed to be combated. She asked about the relationship between national machinery on gender issues and the national human rights commission.
HANNA BEATE SCHOPP-SCHILLING, expert from Germany, asked if there had been consultations with traditional communities regarding the new priority of national anti-discrimination laws over customary laws. She was pleased about the affirmative action elements in new legal system, but she was concerned about the treatment of temporary special measures in the new Constitution. In that vein, she would rather, she said, see the formulation of “neutralization” of men’s advantages, rather than other phraseology about women’s “disadvantages”, which continued stereotypes.
MARIA REGINA TAVARES DA SILVA, expert from Portugal, raised several questions on the relationship among the different parts of Kenya’s national machinery for women. She asked about measures to counteract stereotyped views and harmful practices, such as forced marriage and female genital mutilation. She also asked whether the media was involved in efforts to eliminate stereotyping. The report did not contain much information on the issue of prostitution and trafficking in women. Were there plans to increase penalties for prostitution? The law relating to rape was covered under “offences against morality”. Was rape an act against morality or human rights, human dignity and fundamental freedoms?
SJAMSIAH ACHMAD, expert from Indonesia, also asked for clarification on the various parts of the national machinery for women, suggesting that the next report contain a diagram which clearly identified the lines of responsibility at the national, provincial and sectoral levels. She also asked about affirmative action measures in the field of education.
VICTORIA POPESCU SANDRU, expert from Romania, asked whether the new Government planned to keep the national policy on gender development as it was, or to amend it. She also wondered if it would have to go through lengthy legislative procedures. She said that, by its very title, the national policy on gender and development reflected a focus on development issues. Did the national policy also tackle women’s human rights issues? On Kenya’s commitment to ensuring human rights, and the upgrading of the human rights institution to a national commission, at first view the commission seemed like an ombudsman institution. Was it an independent or governmental body? If it was a governmental body, how would its independence be ensured?
KRISZTINA MORVAI, expert from Hungary, said it was nothing less than an historical moment when so many powerful women had been placed in the right position to fight for human rights and justice, in general, and for their sisters, in particular. How, in a country that had endured so many tragedies and injustices, could the Government ensure continuous support for the aim of achieving gender equality? Did the Government have a strategy or plan to ensure that? While the Government’s political will was obvious, concrete steps were needed. The Convention and the Beijing Platform for Action could serve as guides to monitor the implementation of the national plan. Time limits and deadlines should be set in order to carry out a detailed, comprehensive plan. However important gender equality was, other issues, such as poverty and the fight against HIV/AIDS, were also important. Women must be visibly involved in gender mainstreaming.
PRAMILA PATTEN, expert from Mauritius, said the delegation had enlightened the Committee on actual measures to incorporate the principle of equality in the Constitution, to abolish discriminatory laws and to adopt new laws. It was commendable that the Government had targeted culture and tradition as influential forces. She asked for more information on the constitutional review process and the draft Constitution, which had been drafted prior to the new Government. Had the current Government amended the draft Constitution? What majority was needed for the enactment of the new Constitution? She also asked about the participation of women in the constitutional review process.
AKUA KUENYEHIA, expert from Ghana, asked about the process to nominate or elect women to serve on the constitutional review conference. She wondered if the Government had established strategies to ensure that the women nominated would make an impact on the conference’s work. Much lobbying would be necessary to ensure that the Constitution, which was radical, was not watered down.
SALMA KHAN, expert from Bangladesh, said that poverty-reduction strategy papers, being donor-driven, did not always take into account the particular situation of a country. In Kenya, there had been attempts at gender mainstreaming as early as 1970. Were problems with the early attempts taken into consideration in the new poverty reduction paper? Poverty was due to complex reasons and all of them needed to be taken into account. A macro approach needed to be taken.
She asked whether the national council dealt with broad-based policy. She also asked how the new Constitution ensured equality, as long as traditional laws were still valid, regarding particularly marriage. She expressed disappointment that little had been said about domestic violence in the report. She asked about its extent and measures to combat it.
JOYCE MWIKALI MUTINDA, Kenyan Commissioner for Higher Education, spoke on affirmative action in higher education. She said women were admitted on a level- one grade point lower than men to encourage them to continue with education at the higher level. The Government was also trying to encourage women to study sciences, and for that reason had licensed a women’s science university.
ROSE ARUNGA OLENDE, of the non-governmental organization Maendeleo ya Wanawake, said she worked in an organization that countered harmful traditional practices, including rites of passage. They were trying, for example, to encourage holding those rites without cutting. Change had come through the mere fact that the subject was now discussed.
Female genital mutilation and forced marriage occurred within particular tribes and was difficult to change without changing the mindset of women, as well as men. It was women who performed many of the rites. In certain districts, the practices had been only reduced 1 per cent, but that was encouraging. With the new child protection acts, progress should accelerate. The situation was more difficult in some districts than others.
Ms. ONGEWE, head of delegation, added that there was also legal action to counter such traditional practice. HIV/AIDS had also discouraged genital mutilation because of fears of infection.
ANNE AMBWERE, Kenyan Commissioner for Social Services, said gender mainstreaming was part of a wide framework, because it comprised various topics. She described the structure of the new national machinery, as well as grass-roots units of that structure. There were many interlinkages. She pointed to a section of the report that described the relations between the Gender Commission and the Ministry.
The Minister responsible for gender would make appointments, she said, but the final draft of the Constitution would determine those details, as well as budgeting that was responsive to gender issues. The report received the approval of the Cabinet, and would be picked up by the current Parliament. The old Parliament was dissolved before that could be done.
Ms. ONGEWE said the gender policy was inclusive. It had already gone through the Cabinet, and they were trying to take it to Parliament to give it “legal teeth”.
Ms. NKOROI said the sources of law in Kenya were many. Customary law was not codified and was restricted to marriage, personal law and inheritance. To ensure that no one would apply customary practices for purposes of discrimination, the draft Constitution prohibited the use of cultural or traditional aspects in matters relating to marriage. When international law conflicted with national law, international law took precedence. International instruments had been expressly stated as a source of law in the country. She also addressed citizenship issues and the question of rape. On the latter, she would recommend that rape be codified under the correct section of the penal code.
The human rights commission had a wide-ranging mandate, including investigating complaints, making sure that all parties adhere to human rights principles, and advising Parliament in cases where laws were not in line with human rights principles, she said. Regarding penalties for rape, the criminal law amendment bill sought to include life imprisonment. She had every reason to expect that it would be retabled in Parliament for enactment. The new Government was in the process of defining the functions of the Ministry of Justice and Constitutional Affairs. Upon the enactment of the current Constitution, Parliament would have to review all laws within two years to ensure their compliance with the new Constitution.
Ms. KOOME, addressing the constitutional review process, said the process had been people-driven. Kenya had struggled for an all-inclusive process for more than 10 years. The commission was founded by an act of Parliament, which set out the composition of the commission and took into consideration the principle of affirmative action. There were promises to complete the review process so that a new Constitution would be in place by June.
The constitutional process had been completed through consultation, she said. A draft bill had been published in September 2002, just before the Parliament had been dissolved to give way to the general elections. She had just found out that the draft Constitution had been published yesterday. The new Minister for Justice had committed to holding the constitutional conference to debate the draft in March 2003. The delegates to the constitutional review conference would be made up of representatives of the commission that prepared the draft, members of Parliament, three representatives from every district, at least one of which must be a woman, and women’s non-governmental organizations. Women’s non-governmental organizations and the review commission had set up preconference training for delegates. Women’s organizations had also developed an agenda that contained issues on the promotion and protection of the rights of women.
The draft Constitution provided timelines within which Parliament must bring laws into compliance with the new Constitution, she said. A committee on legal reforms within the judiciary included training for judges on the provisions of the Convention. The Federation of Women Lawyers also had an ongoing programme to train parliamentarians on the Convention, as well as other international instruments.
JANE KIRAGU, Adviser for the Federation of Women Lawyers, responding to questions on prostitution, said that the laws regarding prostitution were skewed against the prostitute. Reviews of the penal code would address the discrepancy between prostitute and client. The Minister for Judicial Affairs had agreed to move in the direction of penal reform. It was an area that required intense consultations in terms of reform.
Ms. ACHMAD, expert from Indonesia, asked for information on government initiatives to promote women in leadership roles in political life. To what extent did the Government have specific programmes to encourage women in political life?
Ms. KUENYEHIA, expert from Ghana, also posed questions on women’s participation in political life, especially at the local level, as most women lived in rural areas.
MERIEM BELMIHOUB-ZERDANI, expert from Algeria, welcomed the delegation and expressed appreciation that, due to their determination, things had started to move in Kenya, as in many other African countries. It was commendable that Kenya had ratified the Convention only some 20 years after its “long night of colonialism” had ended. Much remained to be done, and it was no time to rest. Structural adjustment programmes had impoverished the African continent. Women must continue to fight, and must be trained to fight. Kenya must tap into the resources of the United Nations and its specialized agencies.
Ms. TAVARES DA SILVA, expert from Portugal, asked about the possibility of applying temporary special measures to increase women’s participation in public and political life. She noted several forms of discrimination in Kenya’s nationality laws -- not all discrimination seemed to have been addressed. Did women have to obtain the consent of their husbands or fathers to travel, and did children need to obtain their father’s consent to travel with the mother? Did the Government plan to do something about it?
Ms. POPESCU SANDRU, expert from Romania, said there seemed to be progress in women’s political participation. Nothing, however, had been mentioned about quota systems being used. Did parties use such quota systems to increase the percentage of women candidates? She also asked whether the national gender machinery could make recommendations to balance political appointments in the new Government, and wanted more detailed data about women’s representation.
Ms. SHIN, expert from the Republic of Korea, also wondered whether quotas were being considered in this area, and whether a change in conditions for potential women leaders was envisaged, to make it more advantageous.
Ms. ONGEWE said that the main programme to increase women’s representation was through the Electoral Commission, which, over the last three years, had become more open and had tried to work closely with women’s advocacy organizations and those concerned with civic education. However, advocacy was more effective in Kenya through civil society organizations themselves. The draft Constitution stated very clearly, she said, that the representation of women in bodies at all levels must be at least one third. That represented significant progress. The party in power had also pledged minimum levels of women’s representation.
Concerning women in the diplomatic and foreign service, the official status was that the Government appointed on merit. However, despite all progress in Kenya, it was still easier for women to follow their husbands to posts than the other way around. That remained the situation, and it had its good and bad consequences.
Ms. KOOME said that in the governing party and the party of the previous Government, there was women’s representation. The political parties bill would mandate proportional representation. The principles of affirmative action should ensure balanced appointments.
Ms. ONGEWE added that the Government recognized the unique role that civil society played. Under the non-governmental organization Coordination Act, NGOs were seen as critical for development, and were empowered to make sure that in women’s issues the Government would implement based on targets and impact.
Further Comments and Questions from Experts
Ms. GASPARD, expert from France, said that, in either diplomacy, administration or justice, there were not enough statistics on women’s representation in the current report. The one-third representation was just a ceiling. One of the obstacles to stopping genital mutilation, she said, was that it supported the women who performed them. Were there any plans to work with those women so they could stop?
Ms. KAPALATA, expert from the United Republic of Tanzania, said that the next report should include more gender-specific information on HIV/AIDS in Kenya and programmes to combat it.
Ms. SHOPP-SCHILLING, expert from Germany, said a major effort needed to be made to give credit to women. The two programmes mentioned did not seem to have enough resources. A new credit scheme must be developed that was not based on land ownership, to meet the dire needs of rural women.
Ms. PATTEN, expert from Mauritius, said that in Kenya, as in many others countries, deeply entrenched attitudes hindered women’s enjoyment of equal rights. The Government should be commended for addressing unacceptable disparities. She stressed the need for wide dissemination of the Constitution, as it would place heavy responsibilities on the Government to improve the lives of women. Partnerships with civil society would also be crucial. The focus should be on concrete action to eradicate poverty, remove obstacles, ensure equal access to education, promote economic autonomy, and address the plight of rural women. She requested data on the number of girls who had benefited from measures to prevent them from dropping out of school. She also asked how the Children’s Act had impacted children.
Ms. TAVARES DA SILVA, expert from Portugal, said there was an assumption that family and domestic roles were women’s only. The report did not mention paternity responsibilities and rights.
Ms. GNANCADJA, expert from Benin, asked several questions about education, including the effects of the new syllabus mentioned in the report and the purpose of cost-sharing measures. On rural women, she said their future depended on the reform of laws on property and succession. She also asked for more information on women’s health, including the hidden weight of sexual violence on the health of the female population. On employment, she noted that the report did not elaborate on discrimination in the area of wages.
Ms. SAIGA, expert from Japan, asked how sexual harassment in the private sector was being addressed.
Ms. BELMIHOUB-ZERDANI, expert from Algeria, asked whether the Government intended, as part of its economic development plans, to assume a major role in the lives of rural women. Had the Government thought of guaranteeing access to agricultural credits for rural women?
Ms. MUTINDA, Commissioner for Higher Education, said that funding to universities had been increasing. Kenya’s next report would include concrete figures. Girls had benefited from supplementary funds. For example, with a total budget of some 536 million Kenyan shillings for 2000-2001, boys and girls received the same amount –- some 200 million. Needy girls received the remainder, some
136 million. She would not be able to report on the Children’s Act, as it entered into force only in March 2002. Students now had to take core subjects, regardless if they were girls or boys. At the university level, clusters replaced core courses. Clustering and core classes discouraged students from taking only the courses with which they were comfortable.
Ms. OLENDE said that there were no specific programmes aimed at women who performed female circumcision, but many had stopped when they became sensitized to the harm caused to girls by the practice. Regarding credit for rural women, she said it relied on private institutions and NGOs. Women might not get credit if they do not have title to land, but they could get it in that case through family, which was, admittedly, harder. But the major rural problem was lack of infrastructure. Should, say, water and roads be put in, the situation of rural women would be very much improved.
Ms. ONGEWE added that the Government had revived the Ministry of Cooperatives, which had a major role in improving the status of individuals in Kenya. Cooperatives were the main way of like-minded groups to access credit in the country. She also said that the National AIDS Council, in collaboration with NGOs, had developed a gender mainstreaming policy that had helped to inform the HIV/AIDS bill.
Experts Questions and Comments
Ms. SIMONOVIC, expert from Croatia, asked about women’s rights after divorce and their compatibility with provisions of the Convention. Did the Government have any plans to enact legislation to make sure all marriage regulations were in conformity with article 16 of the Convention? She also asked about naming policies, and the national policy of implementing the outcome of the Beijing and the Beijing + 5 conferences.
Ms. GONZALEZ MARTINEZ, expert from Mexico, said that it was disturbing that in nine years there had been no change in laws on domicile and the ability of women to make decisions in that area. The Convention was also contradicted by a lack of women’s control in passports issues.
Ms. KHAN, expert from Bangladesh, wanted more information on rights ensured under the five different forms of cultural marriage laws. How could it be said that cultural discrimination was barred if those laws still stood? She suggested that reforms be made to cultural marriage laws, as they had in other countries.
Ms. TAVARES DA SILVA, expert from Portugal, said that it was important to change domicile laws, and there were contradictions in the report concerning the cultural marriage laws. Some practices that were prohibited by the new Constitution might be allowed under marriage laws of certain cultures.
Ms. KAPALATA, expert from the United Republic of Tanzania, and Ms. SHIN, expert from the Republic of Korea, also wanted more information on the five forms of marriage laws.
Ms. GNACADJA, expert from Benin, wanted to know what the Government’s actions would be if certain kinds of violations occurred under some forms of the marriage laws.
Ms. MORVAI, expert from Hungary, asked what the legal aid system was like and how it benefited women. She also emphasized that women in responsible positions had to convince themselves that caring was the joint responsibility of women, men and the community.
Ms. BELMIHOUB-ZERDANI, expert from Algeria, said that there would be differences in discrimination under the different forms of cultural marriage. Muslim law was different from Hindu law regarding marriage, and both were inconsistent with women’s rights in different ways. She wanted to know, particularly, what were the consequences for women when marriage was dissolved under the different cultural forms, as well as succession and adoption.
Ms. PATTEN, expert from Mauritius, asked if the Government envisaged the compulsory registration of customary marriage. She also asked for more details on the legal aid scheme proposed by the Government.
Ms. KOOME, addressing property rights upon divorce, said that Kenya had been using an old marriage registration practice, the 1882 married women’s property rights of England. Efforts were under way, however, to develop a property rights law that would govern the proprietary rights of women over property. Progressive precedents had determined that all properties acquired during marriage can be shared by the wife and husband. That jurisdiction had been extended to all marriages, including customary law. The courts had established that the principle of equality would be used to distribute properties acquired during marriage. Work was being done on a bill to that effect.
The marriage law was a challenging issue, she said. Efforts to seek a uniform marriage law that afforded both men and women equal rights in marriage began in the early 1970s. Kenya recognized, however, its religious and cultural diversity. The emerging trend was that, notwithstanding the type of marriage, courts would accord alimony to women upon divorce. Child custody would be interpreted according to the welfare of the child, not the type of marriage. The courts had jurisdiction over all disputes and all types of marriage. Once the draft constitution was enacted, cases would be determined by the principle of the Constitution and would not be governed by customary laws.
On the issue of inheritance, she said when the Constitution was passed the major task would be to educate the public on the new law and its obligations. Regarding legal aid, the problem was not the law, but the fact that most people were not aware of their rights. Legal aid had been provided by NGOs in the form of legal aid clinics. A pilot legal aid scheme was now being launched. She hoped a national legal aid would receive budgetary consideration. Women were not required by law to change their names upon marriage. Many women were choosing to maintain their family names.
Ms. AMBWERE, responding to questions on the Beijing Platform for Action, said that Kenya had created a strategic plan of action with benchmarks, which
would guide implementation of the next phase of the Platform for Action. She also noted that Kenya did not discriminate in the area of equal pay for equal work.
Ms. ONGEWE emphasized that there was tremendous political will in Kenya. She could not overemphasize the incredible need for gender sensitization for all the political parties, members of Parliament and local leaders.
Ms. ACAR, Committee Chairperson, thanked the delegation for the engaging dialogue. All were impressed by the competence of the delegation, as well as its vigour in answering the numerous questions posed to it. The Committee was also impressed with the stated political will of the new Government. It might be a historically important crossroads for Kenya and Kenyan women.
The Committee was also concerned, however, about prevailing gender discrimination in traditions and practices, she said. She was particularly concerned about female genital mutilation and the multiplicity of legal systems. Discriminatory laws on passports and marriage matters still persisted. She was also concerned about discriminatory customary laws and the prevalence of polygamy. She was disturbed by the resigned attitude on the matter in the report. Religious and cultural diversity could not constitute a violation of human rights. A proactive role on the part of the Government was needed. She was hopeful about Kenya’s future implementation of the Convention and looked forward to the entry into force of the draft Constitution.
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